Current status: 01/2017
1. General / Transactions
Unless explicit reference is made by us to special conditions, these Terms and Conditions shall apply to all present and future contracts entered into by us.
No terms and conditions proposed by buyer which are different from those contained herein shall apply, even if not expressly rejected by us. They shall apply in exceptional cases only if expressly accepted by us in writing. This also applies to any collateral agreements and arrangements made by our agents by telegram, by phone or otherwise. They have neither the authority to transact business for us or to collect, nor are they authorised to agree on any alterations to these Terms and Conditions. To the extent that our products are erected by our fitters, our General Terms and Conditions of Erection shall apply in addition. All contracts shall become effective only upon our written confirmation of the order. Unless agreed upon otherwise, our offers are principally conditional for 6 weeks.
2. Delivery times
Any delivery dates quoted by us shall principally be regarded as approximate only. Unless they have been expressly designated by us as binding in writing, we shall be entitled to exceed them by up to 6 weeks. The times quoted shall commence at the date of confirmation of the order, not until all circumstances of the delivery concerned have been clarified, however. Partial shipments shall be permissible.
3. Call orders
In case of call orders, upon expiry of 6 months following the date of order confirmation and after granting a respite of 2 weeks, we shall be entitled at our discretion to demand acceptance of and invoice the goods not yet called off or to reject the supply and claim damages for non-performance. If no call date has been agreed, we shall be entitled upon expiry of 3 months following the date of order confirmation and after granting a respite of 2 weeks to demand acceptance of the goods or to withdraw from the contract and claim damages. If acceptance is demanded, we shall be entitled to demand immediate payment even before completion of the goods. If the goods have already been completed and acceptance is demanded, the goods will be stored from then on at buyer’s account and risk.
If we are unable to keep the stipulated delivery dates due to circumstances of force majeure or causes which with reasonable care could not be foreseen or avoided by us, the time for delivery shall be extended accordingly. We will not be entitled in such a case to withdraw from the contract or from the part of the contract that has not yet been performed.
In particular strikes and lock-outs shall also be considered as cases of force majeure.
5. Prices / Terms of payment
The prices will be with the agreed freight basis, excluding the packing, plus the applicable value-added tax in the currency stipulated in this contract. If there is any increase in the cost factors (e.g. prices of raw materials, fuels, energy), we shall be entitled to reasonably increase the affected prices. Goods to be delivered within the framework of call orders will be charged at the time of completion. In such a case, payment shall be made in accordance with the agreed terms irrespective of the delivery. If delivery is made at list prices, our prices valid at the date of delivery shall apply. Any payment due to us shall be made within 30 days of the invoice date without any deductions unless expressly agreed otherwise. The buyer shall have no rights of retention. He shall be entitled to set off only if the set-offs have been recognised by us or judged to be effective. We reserve the right to charge interest after the due date at a rate of 3 % above the applicable discount rate of Deutsche Bundesbank. Bills and cheques will be accepted on account of performance only if a special agreement to this effect has been made. Any costs arising there from shall be to buyer’s account. Payments by cheque and bill will be considered as having been made only at the time at which the counter value is at our free disposal. We will not undertake a guarantee for protestation.
6. Credit rating
If the buyer fails to comply with the agreed terms of payment or if, after the contract has come into effect, circumstances come to our knowledge which allow the conclusion that the buyer does not have the credit rating we had assumed at the time of coming into effect of the contract, all outstanding accounts shall become due irrespective of the currency of any bills possibly still payable. We shall be entitled to make any deliveries and services still to be performed against advance payment only. If buyer is in default, we shall be entitled to withdraw from the contract without granting a respite or to claim damages for non-performance.
7. Shipment / Packing
Shipment shall be made in all cases at buyer’s risk. This shall also apply in cases where it has been agreed that delivery will be made free of all charges, f.o.b. or c.i.f.. The quantities and weights determined by us shall be decisive for invoicing. Risk will pass to buyer at the moment where the goods are dispatched from our premises. If dispatching of goods is delayed for reasons attributable to buyer, the risk will pass to buyer already at the date at which the goods were ready for shipment. We shall not be liable for transport damage. An agreement whereby a transport insurance is taken out by us may be concluded. To secure the right to damages in case of transports by railway, the consignee shall have damaged items and short weights certified on the railroad bill of lading by the railway authorities before accepting the shipment concerned.
If shipment is delayed for reasons attributable to buyer, we shall be entitled at our discretion to store the goods at buyer’s account and risk. The goods will be packed at our discretion and charged at most reasonable prices. We generally do not take back any packing material. If we agree to take back packing material by way of exception, buyer shall be obliged to return it free of charge. We will then place the value to buyer’s credit which corresponds to the degree to which we determine the material to be reusable.
Goods and plants shall be accepted at our works at buyer’s expense. If buyer waives acceptance by implication up to the agreed date of delivery, the goods shall be deemed to have been approved upon leaving the works. With respect to goods to be pressure-tested, only the pressure test performed at our works shall be regarded as decisive.
9. Drawings / Proprietary rights / Software
We have sole ownership and proprietary rights in regard of all drawings, technical documents, software etc., and they shall be returned to us on request. They may not be made available to any third parties without our express approval. Any copying of items delivered and the use of designs provided by us will constitute an infringement of our proprietary rights.
We shall not be obliged to check the legality of any design drawings, samples and the like submitted to us. Buyer shall warrant that no proprietary rights of third parties will be infringed by the manufacture and delivery of the goods. He hereby undertakes to indemnify us from any liability in case such rights are infringed. We do not accept any liability for the loss of drawings and designs from outside parties.
10. Warranty / Complaints
We grant on all products manufactured by us a function warranty of 12 months, counted starting from the time of line-up by a authorized company and there certified experts. The warranty will end if this period exceeds 18 months starting from delivery date. Replacement parts and spare parts possess likewise a warranty period of 12 months. Where orders are based on samples and other information, deviations customary in this line of business shall not be regarded as defects. Properties shall be deemed as being guaranteed in the sense of § 459 of the civil code (BGB) only if we have expressly defined them as such in writing. No warranty cover is given for any parts supplied which are subject to premature wear due to their nature or kind of use. We shall also not be liable for any damage attributable to a kind of use which we have not expressly defined as admissible. This applies in particular to damage caused by chemical effects (e.g. acids). Complaints relating to defective, wrong or incomplete shipments shall be communicated in writing at latest within one week of the receipt of the goods if the defects or deviations could be detected in a careful investigation.
With respect to other defects or deviations, this term shall commence from the date at which the defect or deviation has been detected. The warranty shall terminate at the date stipulated by this rules.
If buyer or any unauthorised persons make repairs or other changes on our products, all warranty claims shall become null and void. Where complaints are justified and made in time, we will at our option manufacture or supply a replacement for the defective good after it has been returned free to our works. From the direct costs arising as a result of repair or replacement of the defective good, we will cover the costs for the item used as replacement or the costs of the real working time if we consider it necessary to send a fitter. All other costs shall be borne by the buyer. Our liability for foreign products supplied by us or used in the manufacture of our products shall be limited to the assignment of the claims we have against our suppliers to the buyer. We will be obliged, when requested by buyer, to provide him at any time with the names and addresses of the suppliers of foreign products. No warranty will be granted for used goods. These goods shall be deemed as having been properly delivered upon leaving our store or place of dispatch.
All claims for damages for any legal reason whatsoever shall be excluded unless based on proven intent or gross negligence. No liability will be accepted for the behaviour of our vicarious agents, our legal representatives or managerial employees. The amount of claims for damages shall in each case be limited to the contract value in question. Claims for damages shall expire by limitation 6 months from the date at which the item on which the claim raised is based has been dispatched from our works. Where buyer is in default of acceptance, the above period shall commence at the date at which the contract enters into force.
12. Commission orders
Where materials, semi finished products, fixtures or other parts are made available by the client in the case of commission orders, we shall be obliged to check these parts only if this has been expressly stipulated in writing. If parts supplied to us become unusable due to circumstances of force majeure or other circumstances not attributable to us, we will not accept any claims for free replacement or payment of any other costs. Costs of rejects totaling up to 5 % of the total quantity shall be borne by the buyer.
13. Reservation of title and resale
We reserve title to the goods (reserved goods) up to the time of payment of all claims from the business relationship, in particular also of the balance claim from a current account, as well as up to the payment and encashment of bills and cheques submitted for this purpose (this also applies to the so-called cheque-bill exchange procedure). With open accounts, the reserved goods will be regarded as security for our balance claim. §§ 946-952 of the German civil code shall not apply. Working and processing will be performed for us without binding us. To the extent that buyer acquires ownership or joint ownership in the created product through connection, mixing or processing, it is understood that we become owners or joint owners of the new products at the time of passing of title to the buyer in accordance with the value of our processed reserved goods. In such a case, buyer shall keep the created goods for us free of charge. To the extent that the reserved goods are in the possession of a third party, buyer hereby assigns all claims he has against it to us. We shall be immediately entitled to take the stock in store and/or have it taken in store, to take away or have taken away the reserved goods from the possession or custody of the buyer and also to enter his premises or those of the owners for this purpose.
If the buyer sells reserved goods - irrespective of their condition - he hereby assigns all claims arising therefrom inclusive of all subsidiary rights to us. We accept the assignment. When requested by us, buyer shall be obliged to notify his buyer of the assignments and to hand over to us any documents needed to assert our rights. The assignment serves as a security, the amount of which corresponds to the value of the reserved goods sold. No pledging and collateral assignment of reserved goods shall be allowed. Buyer shall notify us immediately of any attachments or similar infringements.
If the value of the securities given to us exceeds our claim by a total of more than 25 %, we will be obliged, when requested by buyer, to retransfer and release securities corresponding to the value being in excess of the claim. If we take back in our possession reserved goods, we shall be entitled without prejudice to buyer’s payment obligations to utilise them in the best possible way by selling them by private treaty for buyer’s account or to take them over at the value the returned goods have for us. In case of selling of the same, we shall only be liable for intent or gross negligence. If buyer delivers the goods on credit to a third party, he shall also be obliged to reserve title to the same by entering into an agreement corresponding to this clause.
14. Place of performance / Law / Contract language / place of jurisdiction
The seat of our company shall be the place of performance for delivery and payment. German law shall apply with the exception of the uniform law on the international sale of goods and the uniform law on the conclusion of international contracts for the sale of goods. If translations in a foreign language are attached to the contract documents, only the German version shall be effective.
The competent court at the seat of our company shall be legal venue.
To the extent that any provisions of these Terms and Conditions turn out to be invalid on account of legal regulations, in particular the law on rules for general terms and conditions (AGB-Gesetz), such provisions shall be replaced by legally valid provisions, in particular provisions envisaged by the above law as substitute for the invalid provisions concerned. This shall apply in particular to transactions with non-traders.